Saturday, November 09, 2013

Calls for greater oversight/review continue

More concerns are being expressed about the limited degree of oversight/review to which CSE is subject, including the lack of regular parliamentary oversight (Mitch Potter & Michelle Shephard, "Canada’s electronic watchers enjoy secrecy second to none," Toronto Star, 9 November 2013):

“Canadians who think they are in the clear on these ongoing scandals need to grasp that we are the ones who need the debate the most,” said Ron Deibert, director of the University of Toronto’s Citizen Lab.

“The Canadian checks and balances just aren’t there. We have no parliamentary oversight of CSEC, no adequate independent entity to watch the watchers and act as a constraint on misbehaviour. It just doesn’t exist now.

“It’s not a question of people shrugging and saying, ‘Well, I’ve got nothing to hide.’ The real problem is oversight — and the potential for abuse if left unchecked.”

It’s an idea that even CSEC’s former chief, John Adams, concedes would be helpful.

Adams doesn’t think “oversight” is realistic, but supports the robust “review” of CSEC’s activities and sees the value in having a committee of security-cleared parliamentarians “fully briefed on what CSEC is doing.

[A note on terminology: Canada's intelligence review bodies draw a sharp distinction between oversight, which is continuous, and review, which takes place after the fact, and note that their job is review (SIRC position; OCSEC position). However, in day-to-day use, "oversight" is typically used to refer all forms of monitoring by external officials or bodies. (I'm certainly one of the ones who usually uses it that way.)]

“It would be an opportunity for them to provide feedback and observations and raise concerns perhaps about what CSEC is doing and CSEC could also use that forum as an opportunity to talk about what they might be doing or consider doing or to bounce off of them some thoughts,” said Adams.

“It would be an opportunity for (Parliament) to have some public debate but it would be a limited public debate because they’d have to be sworn to secrecy.”

...

University of Ottawa scholar Wesley Wark, who specializes in national security and the history of intelligence agencies, says the CSEC watchdog is simply not enough.

Unlike Britain and the United States, Canadian oversight leaves a “gaping hole . . . a big gap” because Parliament is not involved in holding intelligence agencies to account as Adams suggested, Wark told The Star.

The issue has simmered for years, said Wark, with failed attempts, most recently in 2005, to create a British-style Committee of Parliamentarians on National Security.

But oversight actually grew worse in 2011, said Wark, when CSEC was deemed an independent agency within the Department of National Defence, effectively eliminating a requirement to report to the national security adviser and Privy Council office. “It took that away entirely,” said Wark, “and put it all within (DND), where it’s very easy for CSEC to disappear down its secret hole.

[Actually, the situation is even worse than Wark says. CSE used to report through the National Security Advisor in the PCO and the Deputy Minister of National Defence. But it now reports through neither. Since 2011, the Chief of CSE has been considered to be his own deputy minister, and he reports directly to the Minister of National Defence. CSE is considered to be in the National Defence portfolio, but it is not a part of the Department of National Defence and it has no reporting relationship through that department.]

...

Deibert, who this year published Black Code: Inside the Battle for Cyberspace, argues that while parliamentary oversight remains an admirable goal, the evolving issue of privacy-versus-surveillance warrants something more ambitious.

“I would go further: There needs to be somebody who is not part of Ottawa culture, who is adversarial, something with the authority and credibility of the Privacy Commission’s office,” said Deibert.

“Parliamentary oversight is necessary. But you also need oversight that doesn’t depend on favours or look through the lens of partisan politics.

“I just don’t think, as a society, Canada has caught up with the epochal scope of what has changed in the last 10 years. We’ve gone through the most profound transformation in how we communicate. Mobile and broadband technologies have turned us inside out — and at the same time these Cold War agencies are now turning their gaze inwards on us.

“It’s no longer spy-versus-spy and concern over foreign states with nuclear weapons. Now it’s about somebody blowing themselves up in a shopping mall. And so the threat model has turned toward all of society.”

(Bonus comment on the Toronto Star article: Whoever wrote the caption for the photo of John Adams that accompanies the piece evidently doesn't know that Adams is no longer Chief; at least the reporters themselves are not confused on that point.)

As noted in the article, CSE is the only member of the UKUSA community that doesn't have some kind of formalized parliamentary or legislative branch oversight/review. Here is what CSE's partner agencies say about their legislative watchdogs:

Liberal public safety critic Wayne Easter, introduced a private member’s bill Thursday that would see six MPs and three senators exercise oversight over the spy agencies. Easter [actually Liberal MP Derek Lee] had previously introduced a version of the current bill in 2009 but it went nowhere. And with the Liberals as the third party in the House of Commons, that’s likely to be true again.

But recent revelations about Canada’s security agencies have raised calls for more accountability among various federal politicians and officials.

...

The NDP has also called for action. Last month, it put forward a motion to create a “special committee on security and intelligence oversight” that would make recommendations on parliamentary oversight of security agency activities.

And even in the middle of the spending scandal, the Senate recently found time to debate the whether CSEC had sufficient oversight.

The idea of creating a special committee to provide accountability to the national security agencies has been around for almost a decade.

In 2004 the Liberal government under Paul Martin created a special committee to advise on the best practices of National Security committees. A bill was introduced in November 2005 by then Liberal public safety minister Anne McLellan, but the bill died when the government fell and an election was called.

[McLellan's bill, C-81, was given first reading on 25 November 2005. Easter's private member's bill is identical to C-81.]

In January 2011, Prime Minister Stephen Harper mused about the idea of creating a committee on national security, but said there was no agreement on a particular model.

Easter, who was part of the 2004 Liberal advisory committee on the issue, feels that there is no need for additional research.

“We’re already way behind the rest of the world and our allies in terms of having a national security committee of parliamentarians,” he said Thursday. “We do not need another study to study what’s already been studied.”

A June 2009 Public Safety Committee report on the Iacobucci/O’Connor inquiries recommended that this legislation be revived and enacted: “the committee recommends that Bill C-81, An Act to establish the National Security Committee of Parliamentarians, or a variation of it, which was previously introduced in the 38th Parliament, be reintroduced in Parliament at the earliest opportunity.”

More recently, a Senate report from March 2011 stressed the need for an oversight committee, explaining that “Canada now lags significantly behind its allies on the issue of parliamentary oversight as the only country that lacks a parliamentary committee with substantial powers of review over matters of national security.”

The creation of a parliamentary committee to provide oversight for all agencies responsible for national security, and the requirement for the Prime Minister to table the committee’s report to Parliament are important components to providing accountability and transparency. While the bill may not give committee members sufficient authority to peer behind the veil of secrecy surrounding national security powers and programs, I see Mr. Easter’s bill as a proposal worthy of consideration, debate, and ultimately passing into law.

Cavoukian's statement also called for a greater role for the judiciary in authorizing CSE's eavesdropping activities:

The only gate-keeper limiting CSEC’s power to conduct intelligence gathering is the Minister of National Defence, lacking entirely in independence. Why have the courts been kept out of the equation here in Canada? After all, the courts are well situated to ensure that both necessary surveillance proceeds, and Canadians simultaneously enjoy rigorous privacy protections – not one to the exclusion of the other.

There have also been recent calls by Canada's existing review bodies to improve their ability to work with each other and to examine the workings of the security and intelligence community beyond the specific agencies that SIRC and OCSEC are assigned to monitor. (See the end of this recent post.)

The head of Canada's main spy watchdog says new rules — and possibly legislation — are needed to help keep an eye on federal intelligence agencies.

Chuck Strahl, chairman of the Security Intelligence Review Committee, says that as spy services work ever more closely together, there must be ways for watchdogs to do the same.

Strahl says he has no complaints about the review committee's ability to get information from the Canadian Security Intelligence Service, the agency he and fellow committee members monitor.

"The question though is, what about when it involves other government departments and agencies that we don't have access to?" Strahl said in a recent interview.

"Is the government satisfied that we can chase those threads when they disappear out of CSIS's hands?"

Strahl flagged the concern amid increasing calls for more comprehensive oversight of Canada's spy community, particularly in light of allegations about Communications Security Establishment Canada, the national eavesdropping agency.

...

Liberal public safety critic Wayne Easter tabled a private member's bill in the House of Commons on Thursday to create a national security committee of parliamentarians that would have access to top-secret information — unlike existing committees of MPs and senators.

"The necessity of this legislation has been evident for more than a decade," Easter told a news conference.

Just last month, the NDP unsuccessfully sought support in the House of Commons to study stronger oversight for the intelligence community.

The Conservative government has said it is looking at an inter-agency review system that would modernize the current approach of spy watchdogs working in separate silos, but few details have emerged.

Robert Decary, the recently retired commissioner of CSEC — a watchdog who reports to the defence minister — also expressed a desire to collaborate with the review committee over CSIS.

...

Strahl said intelligence agencies will continue to share more information with one another and work more closely on cases.

"Let's not just pretend it doesn't matter, because it will. And it'll increasingly matter, because the information sharing must continue and it must expand in my opinion — there's just no getting around it," he said.

"That means we need those rules and perhaps legislation that reflects that 21st century reality."